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Minnis v. Oregon Mutual Insurance Company6/7/2002
y Winters suffered is not covered under the policy because, as discussed above, Tuck was not then acting within the course and scope of his employment.
Little John's does not argue that Winters's personal injury otherwise is covered by the policy, nor could Little John's do so persuasively. Winters's allegations concerning Tuck's actions at the pizza parlor -- his offensive comments on repeated occasions or his conduct in chasing Winters and pulling at her clothes -- do not allege claims for false imprisonment or detention or for any other covered "offense." See Marleau, 333 Or at 91 (insurer has duty to defend if factual allegations of complaint state claim for any offense covered by policy). Accordingly, we hold that Winters's injury was not a covered "personal injury" as defined in the policy.
In sum, the bodily injury that Winters suffered while she was at work was excluded under the employee exclusion of the policy because it "arose out of and in the course of" Winters's employment. Only the bodily injury Winters suffered at Tuck's apartment arguably was not so excluded. However, we do not reach the question whether that injury, too, "arose out of and in the course of" Winters's employment, because coverage for any injury (whether "bodily" or "personal") as a result of Tuck's conduct at the apartment depends, first, on whether the injury she suffered was the result of conduct that Tuck undertook in the course and scope of his employment. Because we conclude that any injury Winters suffered as a result of Tuck's conduct at his apartment did not arise from any action Tuck took while acting in the course and scope of his employment, the episode at Tuck's apartment could not have imposed vicarious liability on Little John's under the doctrine of respondeat superior. Thus, Winters's injury as a result of that episode was not covered under the insurance policy.
As to the coverage under the "personal injury " provision of the insurance policy, there is no employee exclusion. However, the personal injury caused by Tuck's actions at the pizza parlor is not covered because it did not arise out of one of the covered "offenses" enumerated in the personal injury coverage provision of the insurance policy. Accordingly, Winter's injuries as a result of the episodes at the workplace also were not covered under the insurance policy. Therefore, because Winters's complaint did not state a claim for any offense covered by the insurance policy, defendant did not have a duty to defend Little John's.
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed.
RIGGS, J., specially concurring.
I agree with the majority that, according to the terms of the insurance policy and the allegations of Winters's complaint, defendant did not have a duty to defend Little John's. Accordingly, I concur in the result. I write separately, however, because I disagree with the majority's reasoning.
I would hold that defendant did not have a duty to defend Little John's because the "intentional acts" exclusion of the insurance policy excluded Tuck's actions from coverage. Accordingly, I would not address the question whether Winters's bodily injury was caused by actions taken by Tuck during the course and scope of his employment.
Regarding the majority's conclusion that Winters's injury was not caused by any of Tuck's actions during the course and scope of his employment, I agree with the majority that this is not a "time-lag" case. Therefore, the Court of Appeals was incorrect to apply the reasoning of this court's decision in Chesterman v. Barmon, 305 Or 439, 753 P2d 404 (1988). Moreo
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